Citation Nr: 1534865
Decision Date: 08/14/15 Archive Date: 08/20/15
DOCKET NO. 08-33 168 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina
THE ISSUE
Entitlement to a total disability evaluation for compensation based upon individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
M. Katz, Counsel
INTRODUCTION
The Veteran served on active duty from May 1961 to February 1966.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge sitting at the Winston-Salem RO in May 2011. A transcript of that hearing is associated with the claims file.
In its September 2014 remand, the Board observed that the Veteran's representative raised the issue of entitlement to an increased rating greater than 70 percent for service-connected posttraumatic stress disorder (PTSD) with depressive disorder in a January 2014 post-remand brief, and referred the matter to the RO for initial adjudication. Review of the record reflects that the RO addressed the new claim in a January 2015 supplemental statement of the case - the RO did not issue a rating decision with respect to the new claim and did not perfect an appeal thereof. As the January 2014 claim for entitlement to an increased rating for PTSD with depressive disorder is a new claim, the Board finds that the RO must properly develop and adjudicate the claim for an increased rating, issue a coded rating decision with regard to the claim, and afforded the Veteran the opportunity to appeal that decision. Accordingly, it is again referred to the RO for initial adjudication.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
In the September 2014 remand, the Board observed that the Veteran's claim for entitlement to a TDIU was inextricably intertwined with the pending claim for entitlement to an increased rating for PTSD with depression, and directed that the claim for entitlement to an increased rating for PTSD with depression be adjudicated by the RO prior to adjudication of the TDIU appeal. This finding still applies to the claim for entitlement to a TDIU, and the RO must properly develop and adjudicate the claim for entitlement to an increased rating for PTSD before a decision may be issued on the claim for entitlement to a TDIU.
Additionally, the Board requested that the RO provide the Veteran with a VA examination to determine the effects of his service-connected disability upon his ability to engage in substantially gainful employment, and indicate whether the Veteran's PTSD with depression rendered him unable to secure or follow a substantially gainful occupation at any point during the appeal period. Although the Veteran was provided with a VA examination in September 2014 with regard to the severity of his PTSD and depression, the examiner did not provide the requested opinion concerning the effect of the Veteran's service-connected PTSD with depression upon his employability, noting only that the Veteran could have moderate problems in physical and sedentary employment due to problems with anger and irritability. The examiner declined to provide the specific opinion requested by the Board, noting that "[p]roviding an opinion as to whether the Veteran is unemployable is a legal determination and not a clinical opinion . . . ."
The Board acknowledges that the ultimate determination as to whether the Veteran's service-connected disabilities prevent him from engaging in substantially gainful employment is a legal determination within the Board's purview. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). However, medical opinions and evidence are required in some instances, such as here, where the Board is not able to determine the impact of the Veteran's service-connected disabilities upon his employability. VA examiners are presumed qualified to provide competent medical evidence. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). Medical opinions regarding whether the Veteran's service-connected disabilities preclude him from employment are regularly utilized by the Board in making its ultimate legal determination as to whether the Veteran meets the criteria for a TDIU. Although the VA examiner noted some of the occupational limitations in the Veteran's case, the examiner did not provide the requested opinion as to whether the Veteran's service-connected psychiatric disability prevents him from engaging in employment. Accordingly, the Board finds that a new VA opinion is necessary in this case.
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for a new VA examination with a different VA examiner than the examiner who provided the September 2014 examination to determine the impact of the Veteran's service-connected disabilities upon his employability. The claims file and a copy of this Remand must be made available to the examiner for review, and the examiner must indicate that such review was completed.
The examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's service-connected PTSD with depressive disorder precludes the Veteran from securing or following a substantially gainful occupation.
The examiner should consider and address the extent of functional and industrial impairment due to the Veteran's service-connected disability. In providing the opinion, the examiner should consider all manifestations of the Veteran's PTSD with depressive disorder since the grant of service connection for depressive disorder in July 2005, as the December 2011 VA examiner opined that it was not possible to distinguish occupational and social impairment between the diagnoses as the symptoms of PTSD and depressive disorder were mutually aggravating.
A complete rationale for all opinions should be provided.
2. Adjudicate the issue of entitlement to an increased rating for PTSD with depressive disorder. Notice of the determination and the Veteran's appellate rights must be issued to the Veteran and his representative. Only if a timely notice of disagreement as to the determination is received, and following issuance of a statement of the case, a timely substantive appeal is received, should such issue be forwarded to the Board for appellate consideration.
3. After the above development has been completed, readjudicate the issue of entitlement to a TDIU. If the benefit sought on appeal remains denied, furnish the Veteran and his representative with a supplemental statement of the case, and return the case to the Board.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).